Waldyr Prado and Igor Cornelsen Charged with Insider Trading on @BurgerKing Stock

Preet Bharara, the United States Attorney for the Southern District of New York, and George Venizelos, the Assistant Director in Charge of the New York Office of the Federal Bureau of Investigation (FBI), announced today the unsealing of a criminal complaint in Manhattan federal court charging Waldyr Prado, a former financial adviser at a large U.S. brokerage firm, and Igor Cornelsen, a director of a British Virgin Islands Investment Company that he owns and operates, with using inside information to trade on Burger King securities in advance of Burger King’s September 2010 acquisition by 3G Capital Partners (3G), a New York and Brazil based private equity firm. Prado and Cornelsen are nationals and residents of Brazil, and they have not yet been arrested on these charges.

Manhattan U.S. Attorney Preet Bharara said, “As alleged, when Waldyr Prado and Igor Cornelsen traded around a ‘sandwich deal,’ the defendants knew they were committing insider trading. They were illegally profiting from material non-public information to which they were not entitled.”

Assistant Director in Charge George Venizelos said, “Trading on inside information negatively impacts individual investors, puts companies at risk and threatens the public’s faith in our financial markets. As alleged, Mr. Prado and Mr. Cornelsen put their faith in a ‘sandwich deal’ and bit off more than they could chew. The FBI will continue to investigate this type of illegal conduct and prosecute those who violate our laws.”

According to the complaint unsealed today in Manhattan federal court:

In about February 2010, 3G initiated discussions with Burger King about a potential acquisition. As part of these discussions, Burger King and 3G executed a confidentiality agreement in April 2010, pursuant to which all aspects of their negotiations and due diligence were non-public.

In about early March 2010, a principal of 3G (3G Principal-1) contacted an investor of the firm (Client-1) and advised that 3G was in negotiations to acquire Burger King. Client-1, who was also a brokerage client of Prado’s, signed a confidentiality agreement with 3G relating to the potential Burger King acquisition. This agreement permitted Client-1 to share information concerning the potential acquisition with Client-1’s financial adviser, i.e. Prado, in order to facilitate Client-1’s decision to invest in the specific 3G fund that would acquire Burger King (the 3G Fund).

From about March 2010 through the September 2, 2010 announcement that 3G would purchase Burger King for $4 billion in stock and the assumption of debt (the September 2 announcement), Client-1 received periodic updates about the general progress of the deal from 3G’s principals. During this period, Client-1 evaluated whether to liquidate personal holdings for a $50 million commitment to the 3G Fund or to obtain separate financing. Client-1 discussed this issue with Prado and, in so doing, confided that the financing was for a commitment to a 3G fund seeking to acquire Burger King. Based on their professional relationship, Client-1 believed that Prado would maintain the confidentiality of this information. Over the next several months, Client-1 and Client-1’s assistant spoke with Prado about the progress of the Burger King transaction.

Notwithstanding the duties of trust and confidence owed to his brokerage firm employer and Client-1, Prado misappropriated information learned from Client-1 for his own benefit and to purchase Burger King stock and options. For example, on May 17, 2010, after Prado met with Client-1 in Brazil and learned of the potential 3G-Burger King acquisition, Prado sent an e-mail to an acquaintance in the financial industry (Witness-1) stating that Prado was “in Brazil with information that cannot be sent by e-mail. You can’t miss it.” After sending this e-mail, Prado and Witness-1 spoke by telephone, and Prado told Witness-1 that 3G was going to acquire Burger King. From May 17, 2010 through September 1, 2010, Prado purchased Burger King stock and call options. On September 2, 2010, following the announcement of 3G’s acquisition, Prado sold his Burger King holdings for a total profit of over approximately $175,000.

On May 17, 2010, and minutes after Prado sent the e-mail to Witness-1 referenced above, Prado sent a similar e-mail to Cornelsen. The e-mail stated that Prado had “some info that I cannot say over the phone....You have to hear this.” Within minutes, and after the market closed, Cornelsen called Prado. The next day, Cornelsen began trading out-of-the-money Burger King call options. From May 18, 2010 through late August 2010, Cornelsen purchased short-expiration call options and had frequent contact with Prado. For example, on August 18, 2010, Cornelsen sent Prado an e-mail asking if “the sandwich deal going to happen,” to which Prado replied, “it’s going to happen.” On the same day, Cornelsen sent Prado another e-mail asking again whether the “sandwich deal” was going to happen, and Prado responded that it was a “sure thing.” After the September 2 announcement, Cornelsen sold his options for a total profit of approximately $1.68 million and a net profit (including expired July 2010 options) of approximately $1.4 million.

In July 2012, in connection with an insider trading investigation, the Securities and Exchange Commission (SEC) deposed Prado. In his deposition, Prado denied any advance knowledge of the Burger King acquisition. Approximately one month after his deposition, Prado fled to Brazil, from where he told his U.S.-based supervisor that he would not be returning to the United States because he believed that he was going to be charged with perjury and because Brazil did not have “an extradition policy.”

Prado, 43, of Porto Seguro, Brazil, and Cornelsen, 65, of São Paolo, Brazil, have been charged in the complaint with conspiracy to commit securities fraud and fraud in connection with a tender offer (count one), securities fraud (count two), and fraud in connection with a tender offer (count three). The securities fraud and fraud in connection with a tender offer charges each carry a maximum term of 20 years in prison, and the conspiracy charge carries a maximum term of five years in prison.

Mr. Bharara praised the investigative work of the FBI and also thanked the Securities and Exchange Commission, which has brought civil actions against the defendants.

This case was brought in coordination with President Barack Obama’s Financial Fraud Enforcement Task Force, on which Mr. Bharara serves as a co-chair of the Securities and Commodities Fraud Working Group. The task force was established to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. With more than 20 federal agencies, 94 U.S. attorneys’ offices, and state and local partners, it is the broadest coalition of law enforcement, investigatory, and regulatory agencies ever assembled to combat fraud. Since its formation, the task force has made great strides in facilitating increased investigation and prosecution of financial crimes; enhancing coordination and cooperation among federal, state, and local authorities; addressing discrimination in the lending and financial markets; and conducting outreach to the public, victims, financial institutions, and other organizations. Over the past three fiscal years, the Justice Department has filed nearly 10,000 financial fraud cases against nearly 15,000 defendants including more than 2,900 mortgage fraud defendants. For more information on the task force, please visit www.stopfraud.gov.

This case is being handled by the Office’s Securities and Commodities Fraud Task Force. Assistant U.S. Attorneys David I. Miller and Jason Cowley are in charge of the prosecution.